For me, on Minor, the different jury instructions given on the same charges doesn’t sit well…
Comment to White Knight takes issue with author of Kings of Tort
The question posed in the title is not rhetorical but, instead, one for readers to decide – preferably after reading the information in this post. As Sop’s comment suggests, the hallmark of Minor’s second trial was same charges with different jury instructions.
The district court required quid pro quo for the same bribery charges in Mr. Minor’s first trial in 2005. As described by the April 17,2008 House Judiciary Committee Majority Staff Report for Chairman Conyers, in the first trial “Mr. Minor was acquitted of most charges while the jury hung on others. On retrial. after the presiding judge revised his evidentiary rulings and relieved the prosecution of the need to prove certain elements of the alleged [bribery] crime, Mr. Minor was convicted of what have been described as ‘vague’ charges based on alleged efforts to obtain an unfair advantage from the two lower court judges, again through loan guarantees, and again despite the fact that Mississippi law allows such guarantees.”
…the prosecutors repeatedly acknowledged at trial that the bribery charges against Mr. Minor involve campaign contributions, but maintained the government has never been required to prove a quid pro quo, much less an explicit quid pro quo for the § 1346 honest services mail and wire fraud bribery charges and the § 666 federal bribery charges against Mr. Minor. To the contrary, the same Justice Department has been specifically required to prove such quid pro quo proof in honest services bribery and federal bribery prosecutions in other parts of the country regardless of whether such bribery charges arise in the campaign fundraising or noncampaign fundraising context. (Letter to US Attorney General Holder)
The Kings of Tort offers a conflicting view (Chapter Four, p, 75, paragraph 2):
“The prosecution and defense waged a major battle over the jury instructions regarding the specific standard for quid pro quo. The core question remained. Was there an intent when loans were made that was reciprocated by actions from these judges. Ultimately, jurors were told that quid pro quo was the standard in this case…”
However, related comment from the Oral Arguments made before the Fifth Circuit Judges hearing Minor’s Appeal suggest otherwise: provide additional insight on the way quid pro quo was presented at the second second trial:
The toughest questions came from Catharina Haynes, President Bush’s sixth and final nominee to the Fifth Circuit who was confirmed by the Senate last April.
Haynes repeatedly asked Collery, the government attorney, to specifically explain “what is the deal” that the government alleges Paul Minor had with the judges whom he was accused of bribing. Haynes pointed out that, in order to qualify as an explicit quid pro quo bribe, there had to be an agreement between Minor and the judges on a specific result, and also pointed out that Judge Teel wasn’t even a judge yet, he was simply running for the judgeship at the time Minor contributed to his campaign, so how could there be a specific official action offered by Teel to Minor in return when Minor couldn’t possibly have had any cases pending before Teel.
Asked again and again to supply a concrete example of what that crucial quid pro quo was, the DOJ attorney seemed to waffle badly, arguing (again, with “vague” charges as the New York Times described this case originally) that Minor’s campaign contributions must’ve been meant as bribes for some “future decisions” in his favor from the Judges. Haynes, clearly understanding the requirement that there must be a specific official act in return for the contribution in order to constitute bribery, asked the DOJ attorney, “Don’t you have to be able to articulate the deal?”
Since taken directly from the record, the most definitive source of the differing jury instructions in the second trail is the charted transcript attached as an Addendum: 2005 v. 2007 Changed Rulings Summary Chart: Jury Instructions:
Examining the trial transcript, as quoted in the Chart, in the context of the reported remarks and question of Judge Haynes and the government’s response provides a basis for further investigation of the validity of claims made by the authors of the Kings of Tort versus related claims in documents filed on behalf of Minor:
Judge Haynes: Haynes pointed out that, in order to qualify as an explicit quid pro quo bribe, there had to be an agreement between Minor and the judges on a specific result…
DOJ Attorney Collery’s response when asked to supply a concrete example of the quid pro quo: Minor’s campaign contributions must’ve been meant as bribes for some “future decisions” in his favor from the judges.
Minor’s proposed jury instruction: The government must prove… that the thing of value was…to ifluence or induce a specific official act.
Court’s (Wingate) related ruling: I think…there need not be a meting of the mind. And that then I feel completely undermines your argument on quid pro quo.
2005 Jury Instruction: That’s the contention, that monies were provided and unlawful favors [were] received. So if you were to find that monies were provided but no unlawful favors were returned…that would not constitute a crime.
[Charging Jury on elements of MS bribery statute…You have to find that [Minor]gave, offered, or promised to an officer – public officer, the judges…money or goods or chattels. And significantly you have to find that if he did all of that, he did it with an intent to influe the judge.
So, if he did it for a purpose other than an intent to infuence, if he did it for a purpose of kindness, friendship, etcetera, he would not be guilty.
2007 Jury Instruction on Bribery: In order to prove the scheme to defraud another of hones services through bribery, the government must prove beyond a reasnable doubt that the particular defendant entered into a corrupt agreement for Paul S. Minor to provide the particular judge with things of value specifically with the intent to infuence the action or jdgment of the judge on any question, matter, cause or proceeding which may be then or thereafter pending subject to the judge’s action or jdgment. To constitute the offense of offering a bribe, there need not be a mutual intent on the part of both the giver and the offeree or accepter of the bribe.
Judge Haynes: …clearly understanding the requirement that there must be a specific official act in return for the contribution in order to constitute bribery,[Haynes] asked the DOJ attorney, “Don’t you have to be able to articulate the deal?”
It should also be noted that Judge Haynes pointed out Judge Teel wasn’t even a judge yet, he was simply running for the judgeship at the time Minor contributed to his campaign, so how could there be a specific official action offered by Teel to Minor in return when Minor couldn’t possibly have had any cases pending before Teel.
Hold on. There’s more to learn and consider before attempting to answer the question raised in the title of this post, a federal prosecutor’s Brady duty for example:
“The landmark [UUSC] decision of Brady v Maryland (1963) places an affirmative Constitutional duty on a prosecutor to disclose exculpatory evidence to a defendant…i.e., evidence in the government’s possession that is favorable to the accused and that is material to either guilt or punishment, including evidence that may impact the credibility of a witness.
For jurors to make a decision that Minor offered loans to either Judge on a quid pro quo basis, or any decision for that matter, there must be evidence to examine and consider. Often that evidence is provided in the testimony of witnesses for the plaintiff and defendant:
After receiving immunity from prosecutors, Janet Miller, Minor’s personal secretary testified about the mechanics of of his loan originations, renewals, and cash interest payoffs. (The Kings of Tort, Chapter Four, page 75, first paragraph)
Miller’s testimony later became a Brady issue:
Mr. Minor’s Brady requests included but were not limited to “(a) Any statement by any defendant or his or her agent that references the lawful activities of Paul Minor to the extent those activities relate to any defendant, including but not limited to statements that there were no quid pro quos in any dealings with judges and that the exchange of things of values were not based on the performance of any official acts,”…
- Janet Miller, Mr. Minor’s business manager… told the government that she did not believe Mr. Minor’s contact with the judges was improper and that she was unaware of any evidence of a quid pro quo agreement between Mr. Minor and the co-defendant judges.
- Mr. Minor’s former law associates Mark Lumpkin and Jim Reeves provided similar statements related to there being no quid pro quos in that they haddone all the legal work on the cases in question and the cases were decided on the merits with no illegal fix in exchange for the official action taken on the cases…
- There were numerous other witnesses who told the government there had been no quid pro quos between Mr. Minor and the co-defendant judges, but Mr. Minor was prevented from calling these witnesses since the government did not comply with its Brady duty.
The government provided no Brady duty pre-trial disclosure of such exculpatory information or information unfavorable to its case from these or other witnesses. Similarly, the government disclosed no information that questioned the credibility of the government’s witnesses.
- For example, Mr. Minor learned that in all of government witness Radlauer’s 17 interviews with the government and testimony before several grandjuries he never stated to the government that Mr. Minor told him to lie to the FBI; yet, he provided testimony to that effect at trial.
Such trial tactics by the prosecutors violated their Brady duty to disclose exculpatory evidence or evidence unfavorable to the government’s case, as well as their duty to be “servants of the law” and duty “to refrain from improper methods calculated to produce a wrongful conviction.” Berger, 295 U.S. at 88.(Letter to US Attorney General Holder)
More of the information needed to answer the question posed in the title will follow in second part of this two-part serving of “food for thought”.
This post was written in its entirety on Thursday, December 10 and scheduled for publication the next day. Publication was delayed after a repairman mistakenly cut the internet service line as the post was going up and a significant portion of the post was lost and/or damaged. The result is a two-part post with this first appearing without revision or reference to the 5th Circuit’s decision released on 11 December.